ISRAEL AT WAR - DAY 144

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'In Israel nothing would be protected' under the planned law

Irwin Cotler: Passing judicial overhaul as is would make Israel a ‘flawed democracy’

Former Canadian justice minister says current proposals would ‘eviscerate judicial review,’ insists any reforms should be enacted in a ‘considered, consultative process’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Former Canadian justice minister and human rights advocate Irwin Cotler, Jerusalem, 2023. (Jeremy Sharon/ToI)
Former Canadian justice minister and human rights advocate Irwin Cotler, Jerusalem, 2023. (Jeremy Sharon/ToI)

Former Canadian justice minister and attorney general Irwin Cotler says the adoption of the package of radical legal and judicial reforms proposed by the government would all but annul Israel’s system of checks and balances on government power and turn the country into a “flawed democracy.”

Speaking to The Times of Israel this week, Cotler said the legislation proposed by the government would “eviscerate judicial review,” “undermine the independence of the judiciary,” and “vest undue power” in the government.

The internationally renowned jurist said he was unaware of any Western democracy that wields the control over both the judiciary and the legislature that the Israeli government would enjoy, should its reform package be adopted in full.

Despite his strong criticism, Cotler asserted that there is room for judicial reforms in response to several concerns highlighted by proponents of the legal overhaul, but insisted any such reforms should be carried out in a considered, “consultative process” that allows for the proposals to be amended, and in a less hasty manner than the government’s current, expedited drive.

Cotler – who has been acclaimed for his decades-long international human rights advocacy, highlighted in a new documentary film entitled “First to Stand: The Cases and Causes of Irwin Cotler” to be screened at the Jerusalem Cinematheque later this month – also warned against extreme rhetoric by opponents of the reform package.

He also rejected Prime Minister Benjamin Netanyahu’s recent comments in an interview with CNN, in which he said that the High Court of Justice override mechanism sought by the government was comparable to a similar legislative tool in Canada.

Prime Minister Benjamin Netanyahu (right) speaks with one of the architects of the government’s judicial overhaul Justice Minister Yariv Levin in the Knesset plenum, December 13, 2022. (Yonatan Sindel/ Flash90)

Cotler pointed out that Canada’s override law was created within the framework of a charter of basic rights and freedoms, which Israel lacks, and that some of the most fundamental rights are in any case not subject to the override clause.

Cotler has had an intimate relationship with the State of Israel throughout his long career. He lived in Israel in 1966-1967 while studying as a graduate student, and subsequently took up a post as a visiting professor at Hebrew University in 1977.

He acted as an informal go-between for prime minister Menachem Begin and Egyptian president Anwar Sadat before peace negotiations between the two countries were initiated, and married an Israeli woman to whom he was introduced by Begin’s wife, Aliza.

Cotler also advised the parliamentary architects of Basic Law: Human Dignity and Liberty, then-justice minister Dan Meridor and MK Amnon Rubenstein, in the 1990s before the passage of the legislation in 1992, from which ultimately stemmed the judicial review of legislation that the current government is intent on curtailing.

In order to facilitate this goal, the coalition’s proposals, if passed, would grant the government complete control over the appointment of judges, including Supreme Court justices; severely limit the High Court of Justice’s ability to strike down legislation; allow the Knesset to re-legislate laws the court does manage to annul with a majority of just 61 of the Knesset’s 120 MKs; turn ministerial legal advisers from professional civil servants into political appointees; and prohibit the High Court from using the test of reasonableness to evaluate government and administrative decisions.

Former Canadian Justice Minister Irwin Cotler together with former Supreme Court justice Neal Hendel at a conference marking the 70th anniversary of the judicial system in Israel, and marking the retirement of former Supreme Court President Miriam Naor, at the President’s residence in Jerusalem. on October 23, 2018. (Hadas Parush/Flash90)

These proposals were originally set out by Justice Minister Yariv Levin of Likud and designed to be advanced as government legislation.

Attorney General Gali Baharav-Miara’s strident criticism of Levin’s legislation last week and her determination that it needed more thorough consideration has meant, however, that the bill actually being advanced is a private member’s bill submitted by Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman of the ultranationalist Religious Zionism party.

In an interview peppered with anecdotes from his career in the legislative and executive branches of power, his experience advocating for political prisoners around the world, and his close familiarity with leading Israeli jurists, Cotler set out his views on arguably the most consequential governmental policy program in a generation.

Concern for Israel’s democratic well-being

“What concerns me about the reform package as a whole is that it basically undermines the independence of the judiciary, it emasculates judicial review, it politicizes the appointments process, it erodes any semblance of separation of powers or checks and balances, and it undermines the independence of the legal advisory process,” Cotler said.

“All the important principles and frameworks of the Israeli justice system, not just the judiciary, are diminished by this package of reforms,” he continued.

If the entire package of reforms would be passed in their current format, “Israel would become a flawed or diminished democracy,” Cotler asserted.

Canadian parliament member and former Canadian justice minister Irwin Cotler speaking at a Knesset Foreign Affairs and Defence Committee hearing, March 20, 2012. (Miriam Alster/FLASH90)

Still, he rejected claims that the government’s proposals would turn Israel into a totalitarian state, and said such rhetoric was counterproductive.

“Even if these constitutional reform proposals were to be adopted, you would still have an elected Knesset, a strong civil society, freedom of the press, and so on,” he argued.

“When you get that type of overreach in the indictment of the proposals, then you end up a situation where one side, the government, says it is trying to restore democracy, and the other side says this is the end of democracy,” with neither claim being true, he submitted.

“What is needed is an engagement without that kind of apocalyptic language.”

Looking at the reforms individually, he pointed to the override clause as being particularly problematic, since the government seeks to institute it without having a formal bill of rights or constitution in place to protect civil rights.

Cotler also pointed out that the override clause would allow the Knesset to re-legislate any law, regardless of what right it infracted, should it be struck down by the High Court.

By way of contrast, the Canadian “Notwithstanding clause,” akin to what in Israel is called the override clause, cannot be used to violate a group of fundamental rights delineated in the Canadian Charter of Rights and Freedoms, including democratic rights, gender equality rights, the right to leave and enter the country, and minority language and educational rights, among others.

“In Israel, nothing would be protected” under the proposed law, noted Cotler, adding that he believed no Western democratic government wields such control over the judiciary and over legislative and executive power as would be the case in Israel were the government’s reforms to be adopted in full.

He also strongly criticized the severe restrictions on the ability of the High Court to even strike laws down in the first place. Under the government’s proposed legislation, such decisions could only be made by a panel of all 15 justices of the court, either in a unanimous decision or with 80 percent of the justices in agreement.

Supreme Court President Esther Hayut and other justices at a hearing of the High Court of Justice on petitions against the appointment of Shas party leader Aryeh Deri as a minister due to his recent conviction for tax offenses, January 5, 2023. (Yonatan Sindel/Flash90)

“This precludes and preempts judicial review to begin with, and basically emasculates the whole judicial review process,” said Cotler.

And, he continued, the proposed change to the judicial selection process is very troubling because it “politicizes the process and gives full control to the executive and full control of the naming of the committee members to the majority party and the government.”

Cotler also said that turning ministries’ legal advisers into political appointees would “undermine the independence of the legal advisory process.” He further rejected the notion that the test of reasonableness should not be part of the toolkit available to the High Court in the judicial review process.

Problems with the process

But it is not just the substance of the reforms that bothers Cotler. It is also the manner in which they are being advanced, and the goal of finishing the process by the end of the Knesset winter session on April 2.

The process of drawing up the Canadian Charter of Rights and Freedoms took two years and involved a broad and deep consultative process in which all stakeholders in Canadian society were able to contribute their views and, critically, impact the outcome, he noted.

“Every single provision of the Charter of Rights and Freedoms was reformed during that period,” said Cotler.

An image of the Canadian Charter of Rights and Freedoms. (Wikimedia Commons)

“The result was that when the Charter of Rights and Freedoms was adopted it was referred to as the ‘People’s Charter,’” he continued, and pointed out that opinion polls have found upwards of 80 percent of Canadians support it.

“If the [Israeli] government wants to engage in serious constitutional reform, then it should provide for a process which is serious, sustained, engaged, representative, and in which, at the end of the day, the government would be open to have each and all of its proposals improved, refined, and the like, as a result of that public engagement,” he said.

Such a process would involve a special Knesset committee, “sustained hearings” over at least a 12-month period, and the participation of a broad range of civil society groups.

If such a consultative process were established in Israel then the result, says Cotler, would be a solution that enjoyed broad support like that in Canada.

Room for reform

Cotler said there is indeed room for reforms in the Israeli legal and judicial system.

He opined that the very wide legal standing allowing almost anyone to petition the High Court even without demonstrating that they have been impacted by the law or administrative decision in question is too broad, and could be narrowed.

Similarly, the very broad application of “justiciability,” meaning the purview of the High Court, to practically all aspects of government policy and Knesset legislation has to be “more effectively defined,” he said.

This is a key complaint of the advocates for the government’s reform package, who argue that the High Court has frequently overstepped its authority when reversing government policy on various issues, especially with regards to economic issues as well as government appointments — most famously the recent decision to bar Shas leader Aryeh Deri from ministerial office.

Health and Interior Minister Aryeh Deri seen outside his home in Jerusalem on January 19, 2023 following the High Court of Justice ruling barring him from ministerial office. (Yonatan Sindel/Flash90

Cotler also recommended establishing an appellate court to deal with appeals from the country’s district courts instead of having the Supreme Court deal with them as is currently the case, which would ease the huge burden of cases the Supreme Court deals with every year.

And he proposed splitting the powerful position of attorney general into two separate roles: a chief prosecutor and chief legal adviser to the government. This is another goal of the current coalition and indeed is likely to be advanced in legislation in further stages of the government’s legal reform agenda.

Cotler said that a High Court override mechanism might be acceptable, but only with a higher number of MKs required to re-legislate a law that had been struck down than the 61 MKs currently stipulated by the government in its draft legislation.

He said a threshold of 70 MKs might be acceptable, although he would prefer as many as 80. Even 70 would seem an unlikely compromise goal given statements by Rothman and others in the coalition, who argue that such a requirement would make use of the override mechanism almost impossible.

“The objective of constitutional reform should result in a written constitution which would aggregate Israel’s Basic laws and be underpinned by a constitutional bill of rights, which would define the relationship between the government, the Knesset, and the judiciary and define the separation of powers of these branches of government,” Cotler said.

“As the Canadian experience showed, if constitutional reforms are to be a people’s package and not just Levin’s reforms, it requires a sustained, deliberative process, and not one resolved in a period of just two or three months.”

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